Citation Nr: 0334305
Decision Date: 12/09/03 Archive Date: 12/16/03
DOCKET NO. 99-07 821 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from January 1954 to July
1957.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1999 RO decision. In that decision,
the RO denied the issue of whether new and material evidence
had been received sufficient to reopen a claim for service
connection for a nervous condition. The veteran timely
perfected an appeal of this issue.
In August 2000, the Board remanded this matter indicating
that the RO's prior consideration of service connection for a
nervous disorder in September 1958 lacked finality, and that
the RO should readjudicate the veteran's claim for service
connection for an acquired psychiatric disorder on a de novo
basis.
A video conference hearing on this issue was held before the
Board in June 2001.
In October 2001, the Board remanded this case for additional
evidentiary development and further adjudication in light of
the newly enacted Veteran's Claims Assistance Act of 2000.
FINDINGS OF FACT
A chronic acquired psychiatric disorder, including major
depression, was not present during service or for several
years thereafter, and it was not caused by any incident of
service.
CONCLUSION OF LAW
An acquired psychiatric disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1101,
1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307,
3.309 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Air Force from
January 1954 to July 1957. His report of discharge, Form DD
214, noted his inservice specialty as an airplane
installation cableman. The veteran's enlistment examination,
dated in January 1954, noted essentially normal findings
throughout. In February 1956, he was referred for a
psychiatric evaluation. The report of this evaluation,
performed in March 1956, noted that a mental examination
failed to reveal any evidence of psychosis or neurosis. It
noted that he was an immature, passive dependent character
with borderline defective intellectual endowment. The
examiner indicated that the veteran possessed no
disqualifying mental defects sufficient to warrant discharge
from the service. The report concluded with a diagnosis of
passive dependency reaction in an immature character with
borderline mental deficiency. His separation physical was
conducted in July 1957. The examination report noted that
his psychiatric status was normal.
In August 1958, the veteran filed a claim seeking service
connection for a dislocated right knee. A VA physical
examination, performed in August 1958, noted his psychiatric
status as normal.
In April 1997, the veteran filed a claim seeking service
connection for a nervous disorder. In support of his claim,
post service medical treatment records, beginning in 1990,
were retrieved from a variety of both private and VA
treatment providers. A medical treatment report from E.
Thompson, M.D., dated in February 1997, noted that the
veteran had been treated by a "Dr. Nelson, psychologist"
and had been diagnosed with major depression disorder,
recurrent, moderate. The report noted that Dr. Nelson wanted
him on Zoloft, and that Dr. Thompson provided him a
prescription for three weeks worth.
A statement from the veteran, dated in July 1997, indicated
that he is having increasing trouble with his nervous
condition and depression. He indicated that he doesn't have
any records to submit because he cannot afford to go to a
psychiatrist. He indicated that he has tried over the years
to control the problem the best he could. He also noted that
he was given a psychiatric examination by the Social Security
Administration (SSA).
In November 1998, the RO sent correspondence to the SSA
requesting copies of the veteran's records. A report of
contact, dated in June 1999, noted that SSA had made a search
of all facilities and they have no medical records relating
to the veteran. In June 1999, the RO sent the veteran
correspondence informing him that SSA did not have his
medical records, and asked that he provide information
relating to his alleged SSA claim which may assist in a
further search for these records.
A September 1999 treatment report noted his history of
periods of depression for the past ten years. He indicated
that his problems were exacerbated by a lawsuit involving his
pool business. He also reported that he and his wife were
divorced for a short period to protect his assets from the
lawsuit. The report concluded with an assessment of some
depression, no suicidal or homicidal ideation. A subsequent
treatment report, dated in late September 1999, noted that he
received a Dear John letter from his spouse while in the
service. It also noted that he incurred the cultural shock
of going overseas and his having fallen off a 90-foot
telephone pole injuring his shoulder during his service. The
report concluded with a diagnosis of depression, chronic,
moderate.
Subsequent treatment reports revealed ongoing treatment for
major depression. A June 2000 treatment report noted that
the depression appears to be under good control.
In July 2001, the veteran submitted a statement indicating
that he was able to hide his emotions for many years
following his active duty service. Currently, however, he
cannot stand being in crowds, commotion and noise.
A statement for the veteran's spouse, dated in July 2001,
noted that she first started dating the veteran in 1957. She
noted that his family told her that the veteran had changed
after serving in the military. She indicated that she had
divorced and remarried the veteran on two occasions due to
his negative behavior.
In June 2001, a video conference hearing was conducted before
the Board. At the hearing, the veteran testified that while
he was on temporary duty in Mississippi he was burned by the
gel inside an exploding dummy H bomb. He noted that he had
problems with his nerves ever since. He indicated that his
nervous problem has caused him trouble maintaining steady
employment. When asked when he was first treated for some
form of mental condition, he indicated that it was about
three to five years ago. He indicated that he would have
sought treatment earlier, but could not afford it. He
testified that he was diagnosed as manic-depressive.
Around November 2001, the RO sent the veteran correspondence
asking that he identify all private treatment providers who
have treated him for a psychiatric disorder. The letter
indicated that the VA would request these records on the
veteran's behalf if he completed necessary authorization
forms, or that he could obtain them and submit them on his
own. In November 2001, the veteran responded indicated that
he had been treated by Dr. Cook and the VA Community Service
Program in Gadsen, Alabama.
In October 2002, Dr. Cook responded to the RO's record
request indicating that she did not treat the veteran in her
private practice, but may have treated him in the VA's Gadsen
office.
In June 2003, a VA mental examination was conducted. The
report of this examination noted that the veteran worked at
his own business for thirty years selling and building
swimming pools. He reported current symptoms of anxiousness,
irritability, low frustration tolerance and fear of crowds.
The report also noted that he came close to death in the
military once. Objective examination revealed his speech to
be somewhat talkative, mood was alright, affect slightly
anxious, and a coherent thought process. Thought content was
negative for suicidal or homicidal ideations. Insight and
judgment were adequate. The report concluded with an
assessment of dysthymia with features of anxiety. It also
noted a global assessment of functioning (GAF) score of 76.
The VA examiner opined that is least likely that the
veteran's current symptoms are related to his prior
evaluations of immature character with borderline mental
deficiency and past dependency reaction noted in his
inservice treatment record dated in February 1956. He also
noted that the veteran seemed to be stable from an emotional
point of view at this point.
In July 2003, the RO sent correspondence to the veteran
informing him of the additional information and evidence
needed to support his claim. It also indicated that the VA
would assist him in obtaining any records he identified.
In July 2003, the veteran submitted a statement indicating
that he had no additional evidence to submit.
II. Analysis
The veteran is claiming entitlement to service connection for
an acquired psychiatric disorder, to include major
depression. Through correspondence, the rating decision, the
statement of the case, supplemental statements of the case,
and the Board's prior remands, the veteran has been notified
with regard to the evidence necessary to substantiate his
claim, and of his and the VA's respective duties to obtain
evidence. All pertinent identified medical records have been
obtained, and the veteran has been scheduled for the
appropriate VA examination. The Board finds that the notice
and duty to assist provisions of the law have been satisfied.
38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Service connection may be granted for disability due to a
disease or injury that was incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303.
Service connection for certain chronic diseases, including
psychoses, will be presumed if they are manifest to a
compensable degree within the year after active service. 38
U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
Personality disorders are not diseases or injuries within the
meaning of the applicable legislation on VA compensation
benefits, and service connection is prohibited for
personality disorders. 38 C.F.R. §§ 3.303(c), 4.9, 4.127;
Beno v. Principi, 3 Vet. App. 439 (1992).
The veteran claims that he developed a nervous disorder
secondary to his active duty service. He attributes this
condition to his having been injured by an exploding dummy H-
bomb while on temporary duty in Mississippi. He also
attributes this condition to his having fallen off a
telephone pole during service, and his having witnessed an
injury to another veteran, which required that his leg be
amputated. For the reasons set forth below, the Board finds
that the preponderance of the evidence is against the
veteran's claim.
The evidence shows that the veteran served on active duty
from January 1954 to July 1957. In February 1956, he was
referred for a psychiatric evaluation. The report of this
evaluation, performed in March 1956, noted that a mental
examination failed to reveal any evidence of psychosis or
neurosis. The examiner indicated that the veteran possessed
no disqualifying mental defects sufficient to warrant
discharge from the service. He also noted a diagnosis of
passive dependency reaction in an immature character with
borderline mental deficiency. His separation physical was
conducted in July 1957 and noted that his psychiatric status
was normal.
An acquired psychiatric disorder, such as a psychoneurosis or
psychosis, was not found during service. There is no
evidence of a psychosis within the first year after active
duty as required for presumptive service connection.
The first reported post-service medical treatment of an
acquired psychiatric disorder is not until the 1997, twenty
years after the veteran's discharge from service.
Subsequent post-service medical records show ongoing
treatment for a psychiatric disorder, which has been
primarily classified as major depression.
There is no competent medical evidence linking a chronic
acquired psychiatric disorder, first shown several years
after the veteran's service, with his active duty service.
The VA examiner, who conducted the June 2003 VA mental
examination, opined that it was least likely that his
dysthymia and anxiety are related to his inservice evaluation
in February 1956 of immature character with borderline mental
deficiency and past dependency reaction. The examiner did
not state that the veteran had a chronic acquired psychiatric
which began during or was in anyway caused by the veteran's
service.
The weight of the credible evidence demonstrates that a
chronic acquired psychiatric disorder, including major
depression, began years after the veteran's active duty and
was not caused by any incident of service. The condition was
neither incurred in nor aggravated by service. As the
preponderance of the evidence is against the claim for
service connection for an acquired psychiatric disorder, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for an acquired psychiatric disorder is
denied.
____________________________________________
M.W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.